UNPACKING THE MDC’S LATEST SUPREME COURT APPEAL

Nelson Chamisa’s MDC filed its notice of appeal against the whole of the Mashavira judgment on 23 May 2019 in SC 289/19 . As expected, the notice is content heavy; listing no less than eleven grounds of appeal. I will discuss the grounds of appeal without evaluating the merits as that may be the subject of a Supreme Court ruling. The effect of filing the appeal might be more important than the actual relief sought, an exercise in securing outcomes through court process ahead of courtroom proceedings.

i)               THE PARTIES

The list of parties suggests simmering fissures within the MDC. The High Court application was filed by Elias Mashavira against the MDC, Nelson Chamisa, Elias Mudzuri, Thokozani Khupe, Douglas Mwonzora and Morgan Komichi in that order. It was against the MDC, its officials and one former official. Morgan Komichi deposed to an affidavit on behalf of the MDC and all its officials. Nelson Chamisa filed a supporting affidavit. The High Court recognized the two deponents, Morgan Komichi and Nelson Chamisa, as the only parties properly before the court. The Supreme Court appeal was filed by the MDC, Nelson Chamisa and Morgan Komichi against Elias Mashavira, Elias Mudzuri, Thokozani Khupe and Douglas Mwonzora. Though united in its High Court defense, the MDC is split in the prosecution of its appeal.

This may have been caused by the ruling that only Chamisa and Komichi were properly before the High Court. However, it would not explain the status of the MDC which appears as the 1^st Appellant even though, like Mudzuri and Mwonzora, it was barred in the same High Court proceedings. Perhaps the MDC agrees with the High Court’s ruling barring Mudzuri and Mwonzora. This is noteworthy since Mudzuri’s tenure as deputy president had also been struck down by the High Court, yet his party's appeal only lists him as a respondent. This failure by senior officials to collectively voice disagreement with the High Court lends itself to rumours of widening cracks within the party's leadership.

ii)             EFFECT OF THE APPEAL

The most immediate outcome from the appeal is the suspension of the order from the High Court. An appeal to the Supreme Court suspends the operation of a High Court ruling, a strategy famously used by the Judicial Service Commission to proceed with public interviews for the vacancy of Chief Justice. Filing the notice of appeal restored the legal legitimacy of Nelson Chamisa’s presidency as well as the vice presidency of Elias Mudzuri. Chamisa’s decisions as president and acting president are now cognisable at law and his party can proceed to congress where he will, in all probability, be elected party president.

The party congress is integral to Nelson Chamisa’s political legitimacy and the initial charge that the High Court judgment was brutum fulmen or ineffectual. Chamisa will likely have secured congress’s endorsement by the time this appeal is heard, arguably rendering the need for an extra-ordinary congress academic. Previously, the MDC appealed against a High Court ruling allowing use of the party’s intellectual property by Dr. Thokozani Khupe. They had the matter remitted back to the High Court, where they removed it from the roll. Avoiding adverse rulings by manipulating court process is commonplace in legal practice and this might be the latest iteration of that strategy. This explains the timing of the appeal which, unlike the delayed filing of the presidential petition, was calculated to enable the party congress to proceed as scheduled. This strategy would also account for the contradiction in making frontal attacks on the same bench from which one later seeks appellate relief.

There is an obvious risk to the approach adopted by the MDC. In a previous post, I discussed the dichotomy of confrontation vs conversation. In this instance, the main opposition party has made an election between confrontation and compliance. Modeling their impending congress as an extra-ordinary congress by shifting dates and recalibrating the title would have brought it in line with the court’s ruling and settled any future questions about Chamisa’s legal legitimacy. On the other hand, confronting the decision creates the real prospect of an adverse Supreme Court ruling which, given the nature of this case, is not a remote possibility. The MDC’s publicly stated misgivings about the courts contradict this willingness to subject themselves to further judicial scrutiny. Perhaps their doubts about the courts are outweighed by the faith reposed in their legal team, evincing the belief that a brilliant lawyer can outmanoeuver a captured judiciary. Nevertheless, compliance with the High Court order would have ensured finality through an (extra-ordinary) congress, whilst confrontation leaves them vulnerable to reinforcement of the High Court’s findings even after holding their much-awaited congress.

iii)            GROUNDS OF APPEAL

1.    The first two grounds of appeal are co-related. In the High Court, Justice Mushore ruled that the MDC had not filed any papers and so was barred from the proceedings. Morgan Komichi’s claim that he represented the party was not supported by any evidence or lawful authority. According to the judge, Even in the Party’s Constitution itself, there is no such authority conferred to the National Chairperson… The MDC is appealing against this finding, arguing that it was denied audience in error, which deprived it of the right to a fair hearing in terms of the Zimbabwean Constitution.

2.    The MDC objects to the finding that its constitution’s reference to deputy presidents is a typographical error. Article 9 of the MDC Constitution refers to the deputy president elected at congress whilst Article 6.4.4.1 refers to deputy presidents in the national standing committee. Since elevation to the deputy presidency is only by election at congress, Justice Mushore concluded that the reference to deputy presidents, who were in fact appointed, could only be the result of human error. In her words,The powers to appoint Deputies to office bearers mentioned in Article 9.1.4 does not stretch to the power to bypass electoral processes and fill in office bearers who have already been provided for by the Constitution. In making sense of these contradictory provisions, the MDC contends that the judge did not interpret the MDC Constitution, but drafted it anew. The MDC argues that the court should have heard evidence before making a ruling on this contested issue.

3.    Justice Mushore ruled that no proof, in the form of minutes or any other documentary evidence, had been placed before the High Court to support the claim that the National Council exercised its powers to appoint the deputy presidents. The proof was found lacking in both the Mashavira and Murimoga cases. The MDC is appealing this point, insisting that the High Court should have ruled that the appointment of deputy presidents was in accordance with their constitution, was mandated by their congress and was thus legally valid.

4.    The MDC argues that the High Court reached its decision based on the wrong constitution. Justice Mushore found that even though Morgan Komichi had disputed Mashavira’s version of the MDC Constitution, he did not provide the court with what he termed the true constitution. Having failed to do so, Mr Komichi proceeded to ground his arguments in the same constitution whose authenticity he sought to impugn. In other words, there was neither provision of the alternate constitution nor reference to its contents.

The MDC argues, on appeal, that the matter of the correct version of the constitution was settled in the Murimoga case and should not have been revisited. This ground of appeal deserves further attention. The MDC does not make the claim that the High Court judgment would be correct if the version of the constitution used by the court were legitimate. Rather, they argue that the judge misinterpreted an already illegitimate version of their constitution. In the other words, the MDC claims the judge misinterpreted and thus redrafted a version of their constitution they maintain was already wrong! This brings us back to the original inquiry:

a)    Would a correct interpretation of the wrong constitution reinforce the meaning of the true constitution?

b)    If so, then how different can the true constitution be from the version used by the Court?

c)    If not, then all arguments regarding misinterpretation fall away since even a correct reading would lead to the wrong conclusion, begging the question why Morgan Komichi did not provide the true version of the constitution to highlight the differences from the version submitted by Mashavira.  

d)    When the MDC accuses the judge of rewriting their constitution, are they accusing her of rewriting the Mashavira version (which they say is the wrong one) or that in Murimoga (which was never before her)?

e)    When the MDC argues that the appointments of deputy presidents was in line with the constitution, is this in terms of the constitution in Murimoga or that in Mashavira or both?

It is not a very clear state of affairs.

5.    The MDC takes issue with the High Court’s finding of bias on the part of the Appeals Tribunal when the forum was never used by Mashavira. Justice Mushore ruled against the Appeals Tribunal because the process would lead to, according to the judgment, persons presiding over their own legitimacy. The Appeals Tribunal is actually a creature of congress and is not necessarily led by the party president. Its membership would, if properly constituted, predate the elevation of Chamisa in 2016. Thus, the MDC argues that the High Court should have ordered the applicant to exhaust this internal remedy.  

6.    The MDC makes a specific argument against Mashavira’s ability to bring this case before a court of law. They argue that his own role in the MDC under the Chamisa is at odds with a challenge of the party leadership. In other words, Mashavira’s activities as Organizing Secretary for Gokwe District during Chamisa’s tenure amount to tacit approval of Chamisa's elevation to party president. This is a fascinating about turn. In the High Court, the MDC argued that Mashavira is not a bona fide member of the party. The court having affirmed his party membership, the MDC now attacks his legal standing based on his activities as a member rather than allegations against such status. It approximates to a concession of the finding by the High Court.

7.    The MDC argues that its impending congress makes the court order for an extra-ordinary congress untenable. The High Court made this order based on its finding that the constitutional requirement for an extra-ordinary congress had not been met; thus requiring curative action to address the constitutional nonfeasance. The MDC argues that the fact of an impending congress renders this legal remedy unworkable in fact and at law.

8.    The MDC is also appealing against the absence of any reference to submissions relating to the law governing voluntary organizations in the judgment. The notice of appeal saves the best for last, as the eleventh ground of appeal strikes me as the most honest and sincerely held. In it, the MDC decries being subjected to the whims of a dishonestly disgruntled individual without just cause. The collective exasperation at the power reposed in a single individual to (try and) reset an entire organization’s constitutional culture is palpable. It is the legal draftsman’s equivalent of how dare you and constitutes popular backlash against the constitutional limitation of power.

iv)            CONCLUSION

It is now back to business as usual. The parties to this case will be informed when court officials complete preparation of the record and thereafter, it will be sent to the Supreme Court which will call for heads of argument ahead of any date of hearing. In the interim, Nelson Chamisa will benefit from his incumbency and entrench his power and influence in the MDC, rendering any adverse court ruling near-impossible to enforce. The court process may simply be means to clear the path for his legitimation at the long-awaited congress. If anybody doubts the plausibility of this use of court process to serve political ends, I would ask if it is too early to inquire regarding the communication challenging Mnangagwa’s election victory filed with the the African Commission on Human and People's Rights in Banjul.

TO CONFRONT OR TO CONVERSE? NATIONAL DIALOGUE AND THE MDC’S NOT SO SILENT TREATMENT

The Government of Zimbabwe launched the Political Actors Dialogue (PAD) on 17 May 2019. The stated goal of the process is to improve the country’s socio-economic fortunes whilst fostering tolerance and an inclusive democratic culture. It comprises seventeen (17) political parties with one conspicuous absentee, the Movement for Democratic Change (MDC) led by Nelson Chamisa. The MDC and its supporters have consistently dismissed POLAD as insincere, ineffectual and disingenuous. In this post, I evaluate the criticism of the POLAD process in the context of Zimbabwe’s recent political history.

1.    Exclusionary Nature of the Process

The most recurring criticism of POLAD has been the absence of the MDC. Some have questioned the efficacy of a process which does not include the country’s biggest opposition party. The absence of the MDC means the views of a significant number of Zimbabweans will be excluded, thereby undermining the credibility and legitimacy of the process. For this reason, South Africa’s ambassador to Zimbabwe, His Excellency Mphakama Mbete, underscored the need for the process to be inclusive and representative. Indeed, it would be inexcusable if the process lacks tangible outcomes and is only meant to bolster President Mnangagwa's image as a unifying statesman. 

However, the absence of the MDC is not by exclusion. They were invited and rejected the offer. Thus, Ambassador Mphakama Mbete also urged all parties to join POLAD. In other words, the process was not designed to be exclusionary. Instead, it is the MDC which found it too broad and inclusive. Nelson Chamisa argues that as the only political actor disputing Emmerson Mnangagwa’s legitimacy, he must be the sole party to dialogue with the incumbent. By this logic, the process need not be more inclusive, but be made exclusive to ZANU PF and the MDC.  

It is demonstrably false to claim that Nelson Chamisa is the only political actor with an electoral dispute with Emmerson Mnangagwa. If anything, he is the only politician who was willing to pursue that dispute in a judicial forum. Whilst Chamisa has persisted with confrontation, his peers have opted for conversation; substituting embroilment with engagement. Therefore, it is counter-intuitive to argue that willingness to dialogue must itself be the basis for the removal of such actors from the dialogue process in favour of those questioning the legitimacy of the incumbent. 

The MDC emerged from a broad coalition of working people, civil society and other groups. In spite of the eclectic nature of its origins, the MDC has operated with a high degree of secrecy and exclusivity in both the negotiations leading to the 18^th Amendment of the Lancaster House Constitution and those in terms of the Global Political Agreement (GPA). In both instances, calls for inclusion from civil society were ignored and the MDC even berated the National Constitutional Assembly (NCA) for opposing the constitution-making process.

Given this backdrop, it is hardly surprising that the MDC finds the POLAD process too inclusive. They believe in the sufficiency of their own participation to the exclusion of other political and civil society players. This is one of the underlying drivers for the proliferation of political parties in Zimbabwe – the primacy of political party formations in national processes.  Ten years ago, the NCA could only protest from the margins as a civic organisation. Now that it is a political party, it is part of the dialogue process and has left the business of boycotts to the MDC. National processes are seldom halted by the non-participation of one political player. Just as the COPAC process continued in spite of the boycott by the country’s biggest constitutional pressure group, the POLAD process has forged ahead in spite of spirited opposition from the MDC.  

2.    Legitimacy and Democratic Mandate

Alex Magaisa argues against the dialogue process as follows;

The fact of the matter is that none of these people has a democratic mandate to assume the role they are claiming. They do not represent anyone because not only are they are unelected but they have no significant vote to their name.

In other words, dialogue is only legitimate if conducted among elected representatives. This mistakenly conflates electability with the capacity to govern. Optimal governance choices are not the exclusive preserve of the elected. Elected officials have an important constitutionally delineated function which is not mutually exclusive with the proffering of alternate models of governance. The Constitution of Zimbabwe recognizes this by allowing the President to appoint up to five unelected members of cabinet. In the United States, the less popular third parties have advocated for pertinent matters excluded from the national debate including opposition to slavery, the women’s suffragette movement and child labour laws. Locally, the Zimbabwe Unity Movement (ZUM) led the effort against the one-party state in spite of securing only two seats in the 1990 general elections. It is abundantly clear that optimal ideas do not fester only among the elected/electable.

Consider the following contradiction; the MDC maintains that the 2018 elections were not free and fair and so Emmerson Mnangagwa is not the legitimate President of Zimbabwe. Conversely, they insist the figures from that disputed election entitle them to preferential treatment as the country’s main opposition party. This is the art of having your cake and eating it. If the 2018 election results are to be considered, then one must come to terms with Mnangagwa’s victory ahead of claiming first position among the losers. If those results remain disputed, then it is reasonable for all political parties to be ranked equally pending a credible election result to set them apart. Just like the CODESA process in South Africa, all parties would then participate in creating the environment for an election with an undisputed outcome.  

The undue emphasis on representative capacity seems misinformed by the 2008 negotiations in which all parties represented in parliament were also parties to the negotiations. In fact, that process was informed more by legislative rather than representative capacity. There could be no legislative outcome from the talks without the two MDC’s since they held a slim majority in the lower house. Representative capacity would have meant that Simba Makoni’s impressive 8.3% of the national vote would have secured him a seat at the negotiating table. Yet he had no legislative capacity and thus no leverage. In the current scenario, and in spite of their parliamentary representation, the MDC has very limited legislative capacity. Like all the political parties represented at POLAD, they cannot block any legislation by ZANU PF including constitutional amendments, let alone pass their own legislation. This severely encumbers their ability to set the terms for any dialogue process or distinguish themselves from other political parties save by reference to figures from the same election whose result they continue to dispute. 

3.    Independent Mediator

The MDC has demanded an independent and mutually acceptable mediator. In the past, a mediator has been selected with some regional or international backing. South Africa was appointed mediator by SADC in 2007 whilst Britain facilitated the 1979 process in terms of a mandate from the Commonwealth Heads of States and Governments. Since the 2018 elections were largely endorsed as credible, there is no such regional/international backing for a mediator. This means the parties would need to create consensus over both the need for and choice of a mediator. Past experience suggests that there is no mediator who is ever truly independent. Lord Carrington deftly protected white settler interests in 1979 whilst the South African mediators were repeatedly accused of pro-ZANU PF bias. The Motlanthe report was the latest iteration of the complexity in trying to secure independent arbiters from abroad.

4.    Undermining Parliament

Magaisa fears the dialogue process will undermine Parliament.

More importantly, as a forum of interaction between the ruling party and the opposition on public affairs, the Polad is beginning to assume the role of an institution that is parallel to Parliament, except that it consists of the ruling party and the unelected.

It is not apparent how dialogue with a member of the executive amounts to assuming the role of the legislature. Neither is it clear how those without any votes in parliament can assume or subsume its role. As already highlighted, many noble causes have been championed outside of formal state institutions. In circumstances where Parliament is established for elected officials, it is reasonable to establish a more inclusive platform outside parliament to influence policy formulation. This does not circumvent the legislative process. Increasing the number of voices in the democratic conversation is not inimical to democracy.

5.    Solving the Economic Crisis 

Everybody agrees that the economy urgently needs to improve. Whilst some believe the panacea lay in better ideas, others repose their trust in particular individuals. Magaisa argues that the economic problems are tied to ZANU PF’s failure to secure the loser’s consent after their victory. Yet the MDC has always argued that ZANU PF cannot manage the economy due to corruption and incompetence. Put differently, the moribund economic has more to do with the victor's ineptitude than the loser's consent or kudira jecha. If the country needs better ideas, then POLAD is an important opportunity for such technocrats as Nkosana Moyo to influence government policy. On the other hand, if it is only Nelson Chamisa and the MDC who possess the keys to unlocking the economy’s potential, then there is little value in engaging the broad swath of Zimbabwean political parties.

6.    Conclusion

If in previous post I was accused of blindness to politics, in this instance it is my singular focus. Opposition to the POLAD process has more to do with the politics of entry and exit than the value of discussing issues and ideas. It is concerned with the who and not the how; hence the emphasis on the legitimacy of the incumbent and those invited to the process. Imagine if fortunes were reversed and the MDC had won the 2018 elections with a two thirds majority in parliament; would they likely cajole ZANU PF to a dialogue process even if ZANU PF rejected the MDC’s claim of legitimacy? Such an outcome is highly unlikely given the treatment of the last high profile member of the opposition to question their leader’s legitimacy: Dr. Thokozani Khupe. Yet somehow, what leads to party expulsion internally is expected to justify exclusive dialogue nationally. Ultimately, every platform must be used to try improve the dire situation in the country and the courage to confront must not preclude exchange of ideas with those with a willingness to converse.