HIGH COURT RULES AGAINST NELSON CHAMISA: THE BATTLE OF POPULISM vs CONSTITUTIONALISM



1.    INTRODUCTION

The High Court sitting at Harare dealt a body-blow to Nelson Chamisas leadership of the MDC on 8 May 2019. In the case of Elias Mashavira vs. Movement for Democratic Change (MDC) and Five Others HH 302/19, Justice Edith Mushore ruled that Chamisa’s ascension to the positions of Deputy President, Acting President and substantive President were contrary to the MDC Constitution. Criticism of the judgment has been as swift as it has been acerbic. The MDC claimed the ruling is part of themachinations and strategies...deployed by the Mnangagwa administration to destabilize and destroy the peoples project.” UK based scholar Alex Magaisa termed the judgement anembarrassment to the legal and political system,” whilst MDC member and lawyer David Coltart called it a “desperate and pathetic move.”  This is at odds with other commentators, most prominently scholar Derek Matyszak, who pointed out Chamisa’s questionable rise to the party presidency ahead of the court’s findings. In assessing these opposing views, I am convinced that it is the populist-driven nature of the MDC which makes its supporters oblivious to the legal consequences of its constitutional misfeasance.

2.    DECISION BY THE COURT

The decision by the High Court is based on the concept of constitutionalism: the limitation of power by a supreme law. Article 6.4.4.1 of the MDC Constitution states that all members of the National Standing Committee, including the Deputy President(s), are elected at Congress. Both Nelson Chamisa and Elias Mudzuri were appointed by Morgan Tsvangirayi in July 2016, allegedly with the blessing of the National Council, but without being elected at Congress. In response, Morgan Komichi argued that the National Council could (and did) condone this departure, but failed to point out the constitutional provision allowing such departure and condonation. For that reason, the appointments were found to be contrary to the MDC Constitution and it was ruled that Dr. Thokozani Khupe should have acted as President pending an Extra-ordinary Congress. The High Court also struck down the elevation of Nelson Chamisa to substantive President without the constitutionally mandated Extra-ordinary Congress as well as all assignments and appointments he made in his capacity as President/Acting President.  

It is noteworthy that, at the time of the appointments of Messrs Chamisa and Mudzuri, Article 6.4.4.1 only provided for one Deputy President. This is affirmed by Article 9.2 which, to this day, refers to the duties of ‘the’ Deputy President. Justice Mushore opined that “it should be obvious that the mention of Deputy Presidents in the plural is a typographical error.” The real reason for the inflation of deputies is probably less benign. As Matyszak explains, it was only after the Chamisa’s elevation was questioned that the MDC Constitution disappeared from the party website, later resurfacing with the letter ‘s’ added to two provisions referring to the Deputy President. This constitutional revisionism became the basis to justify Chamisa’s elevation after the fact.  

The ruling of the Court is therefore based on the MDC’s failure to live up to its own constitutional dictates. Morgan Komichi contended that the constitution attached to the court application was not the correct version, but did not attach any other version. The Court noted that he actually quoted substantially from the attached version, thereby confirming that it is the authoritative text of the MDC. Further evidence of this proposition is evinced by the critiques of the judgment, none of which take issue with the reference to constitutional provisions or how they were interpreted. To the contrary, the critiques have been singularly framed through a political rather than legal lens, abandoning the tradition opposition space of the liberal left (calling for more judicial activism) and attacking the judges from the conservative right (demanding they stay out of political disputes).  
3.    Effect of the Ruling

This means Nelson Chamisa is not, at law, the legitimate President of the MDC and neither is Elias Mudzuri a legitimate Deputy President. None of Chamisa’s appointments and assignments are cognizable at law. An Extraordinary Congress must be held, but it seems it is only Dr. Khupe who can be its legitimate Acting President. This is the scenario which the MDC Constitution provides for which Chamisa has strenuously sought to avoid, perhaps pointing to a fear that his mass public appeal is not reflected within the party's hierarchy . The MDC is likely to appeal the findings, which will suspend the operative part of the judgement. They will also likely argue that their upcoming congress cures all the alleged defects. It is not apparent, given that Chamisa’s elevation and actions have been struck down, whether such congress will have that legal effect. Politically, Chamisa will likely soldier on, but his ability to claim ownership over the MDC party name and assets is now seriously in question and is certainly vulnerable to formidable legal challenge.

4.    CRITICISM OF THE RULING

4.1 Murimoga Case

Both Magaisa and the MDC take issue with the Court’s failure to abide by the findings in the case of Patson Murimoga and Another vs Morgan Richard Tsvangirai N.O. and 4 Others HH635/17. In that case, two members of the MDC challenged the appointment of Nelson Chamisa and Elias Mudzuri to the positions of Vice Presidents (later called Deputy Presidents). Justice Hlekani Mwayera dismissed the case on a technicality, ruling that the applicants did not have the legal standing to institute the matter. The Court did not rule on the actual matter of Chamisa and Mudzuri’s appointments.  However, in Mashavira, Justice Mushore ruled that the applicant possessed sufficient legal standing since, among other reasons, Morgan Komichi acknowledged that he was a party member who even campaigned for Nelson Chamisa in the presidential elections. The MDC is arguing that since the issue of legal standing was dispositive of the Murimoga matter, the Mashavira case should have also been similarly dismissed. This is something the Judge actually addressed;

It is elementary law that this court is not estopped from coming to its own determination in a matter involving different facts and circumstances and different parties by a court of parallel jurisdiction.

In other words, it is a basic tenet of court hierarchy and judicial precedent that the High Court is not bound by its own rulings, but those of a superior court. The Judge could have gone even further and stated that similar facts and circumstances do not guarantee similarity in outcome (unless a superior court has so ruled). Thus the Murimoga reference was hopelessly ineffectual for Nelson Chamisas cause.

            4.2 Political Machinations

Bereft of legal criticism, the supporters and sympathizers of the MDC have resorted to conspiracy theory. It is not about their constitution, its interpretation or any judgement with findings contrary to those by Justice Mushore. Rather, there is a hidden political hand. Magaisa quotes from Levitsky and Ziblatt to argue that the ruling is part of a masterful use of the courts to sideline the opposition as done by Ecuadorian President Rafael Correa in 2011. Coltart asks whether a Court could ever rule against ZANU PF and Mnangagwa in the way the High Court ruled against Nelson Chamisa’s MDC .

It is certainly true that Temba Mliswa and Didymus Mutasa’s Constitutional Court challenge of their expulsion from ZANU PF and parliament was unanimously dismissed. Howeverit bears remembering that when Tendai Biti and 20 other members of parliament similarly challenged the MDC for their expulsion, they were also unanimously dismissed. There is no record of the judiciary issuing judgments to the opposition which it does not render to the ruling party. When the Constitutional Court had the opportunity for, to use Magaisa’s words, a “calculated existential assault upon the country’s leading opposition,” it actually upheld Morgan Tsvangirayi’s claim as the bona fide leader of the MDC. Similarly, in the Murimoga case, the High Court did not gleefully accept the opportunity to undermine Nelson Chamisa’s legitimacy. It actually found in his favour and ruled against the applicants. It is not apparent why a judiciary on a warpath against the opposition would rule in their favour in these high profile cases. This undercuts Magaisa’s claim of an orchestrated use of the courts to sideline the opposition.

5.    LEGAL GENESIS

It is helpful to recall previous cases relevant to this discussion. In Movement for Democratic Change vs. Thokozani Khupe and Two Others HB 111/18, Nelson Chamisas MDC approached the High Court to stop Dr. Khupe from using the name MDC, MDC-T or any of its derivatives. That case was dismissed since no court had ordained Chamisa’s party as the legitimate MDC. However, Justice France Bere singled out Dr. Khupes insistence on constitutionalism as highly commendable. Chamisa appealed that ruling in Movement for Democratic Change vs. Thokozani Khupe and Two Others SC369/18. In that case, he agreed to have the matter sent back to the High Court to determine the issue of the legitimate MDC party. But having so agreed, Nelson Chamisa quietly removed it from the High Court roll, with members of Dr. Khupe’s party celebrating the removal as evidence that Chamisa was aware of the weakness of his claim. The legal question of the legitimate MDC could have easily been settled if Chamisa had pursued his case in the High Court. Instead, and possibly realizing the weakness of his claim, he turned to the people to vote in the election and justify his position by popular acclamation. This explains both the party disdain for constitutionalism and their unrelenting populist critiques of the judiciary.

6.    POPULIST ATTACKS FROM THE RIGHT 

The language of non-interference from the courts is usually associated with the conservative right as it seeks to shield its interests form the progressive agenda pursued by the liberal left. The political right prefers popularly elected representatives (populism) taking precedence over judges limiting their power by law (constitutionalism). Thus, in spite of having been the first ones to pursue legal action to stop Dr. Khupe from using the MDC name in HB 111/18, Chamisa’s MDC now insists that the courts must not interfere in party business. Coltart has called the Mashavira judgement a pathetic interference with the due process of a party whilst the MDC has stated that selection of their party leaders can never be a judicial process. Magaisa refers to the internal affairs of companies as a comparator for non-intervention by courts when matters can be solved by internal majorities. It is apparent that this courtroom defeat has led to a migration by the opposition to the political right, arguing for the primacy of majorities in lieu of constitutional compliance.

For these reasons, the MDC has retorted that, “over 500 000 membershave been involved in a process of electing their leaders at lower levels, from branch to the province.” Coltart says the legitimate faction of the MDC is that which garnered 2,4 million votes in the last election. Alex Magaisa summarises the point;

 the wheels of justice are so far behind the political realities that it leaves judges and the justice system looking utterly out of touch and the subject of ridicule..The fact of the matter is that the dispute which Justice Mushore purports to resolve had already been settled by the court of politics...Both factions of the MDC contested and the results are there for all to see. The judge wants to rewrite this political outcome under the veneer of legality.

In that paragraph, Magaisa inadvertently presents the most concise defense of the deferential judicial method I have read in recent history. That is to say, court decisions must reflect political realities and defer to electoral victors, their constitutional impropriety notwithstanding. The court of law must necessarily follow thecourt of politics.” It is about numbers, majorities and ensuring that legal remedies do not alter political outcomes. Yet constitutionalism has never been about numbers, for we would simply subject ourselves perpetually to the majority. Constitutionalism limits majorities so that populism does not devolve into a tyranny of the majority. It protects “discrete and insular” minorities and gives them a fair shot in a system permanently structured to their disadvantage. It is only through constitutionalism that a female candidate from a minority ethnic group had an opportunity to lead, even if temporarily, the biggest opposition party in the country. This is laughed off by Coltart because she got less than 1% of the vote in the presidential election – yet that is irrelevant. The MDC Constitution never required the most popular Deputy President of the party or the most popular member of the MDC to take over, but simply the officer elected as Deputy at Congress. Using populist arguments against constitutional dictates is not only unfortunate but dangerous. ZANU PF, and not the MDC, has been the most consistent victor in Zimbabwean elections. Inviting the courts to refrain from altering political realities and outcomes is to not only support a deferential treatment towards ZANU PF, but also celebrate assimilation of the courts as agents of political, and not legal, realities. Nothing could be more dangerous for our already fragile democracy.

7.    CONCLUSION

It is highly likely that the reason for lack of substantial legal criticism of the Mashavira judgement is that none exists. This explains the singular focus on mass popular appeal. It is apposite to quote Coltart fourteen years ago as he left Morgan Tsvangirais MDC, "I am not swayed by mere numbers; if I were I would have joined Zanu PF a long time ago." The party which is admonishing the Courts because of their showing in the last election should be cautious in its insistence on the mantra of numbers and populism when those have already been weaponized by ZANU PF. The current critique from the opposition strongly suggests that they are not so much averse to the Courts as they are envious of ZANU PF and wish to replace its brand of populism with their own in lieu of introducing the much needed culture of constitutionalism and respect for the rule of law. 

Comments

  1. A very lucid and sober analysis...far from the madding crowd!

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    1. Your analysis is clear of bias. It really creates an understanding for some so called legal practitioners and social commentators. Great staff you carried out an excellent in-depth analysis which some purpoted legal minds fail to see. Great piece of work indeed.

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    1. Every Zimbabwean should read and understand this piece of work.
      Great stuff!!

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  3. Replies
    1. Thank you ver much for taking the time to read.

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    2. Its never too late too learn..thanks so much

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  4. That was well articulated bamdiki

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  5. Thoroughly impressed with this analysis. Good job sir

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    1. You nailed it. Thanks for the inlightenment

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    2. Eye opener.Hats off to you Tinashe

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    3. Tinashe, your analysis is so clear and helps those who went to learn and avoid embarrassment in the court's of law to understand it. But with the likes of Chamisa who pretends to be a lawyer uuum it is hard. He only thinks of power through populism forgeting his own constitution which I believe must be the supreme document. Thank You for giving what it takes Tee.

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  6. Mmmmm maseva baba, thorough and sober critical analysis , bravooo

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  7. This is a beautiful simplified analysis . Surely Zim has a long way before it's strictures start respecting their own constitutions.

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    1. This is law at it's best.l am just grateful for both arguments.We can now make our own judgement.

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  8. Since this whole thing started this is the most well balanced and on point analysis. Penned without feelings👏👏

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  9. Since this whole thing started this is the most well balanced and on point analysis. Penned without feelings👏👏

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  10. Chakanakira mutemo uri stubborn mapepa haatote

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  11. Chirungu chazombondirasa apo neapo asi donzvo ndaribata. maita basa mkuru.

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  12. i dont understand law but with reason and no emotions i do appreciate the reality on the ground wish other law gurus .. the bitis and welshs of this world would not mislead the masses

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  13. Thank you for the enlightening piece. This perspective gives hope that constitutionalism will trump populism

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  14. Wow. Greatly informative. Thanks mate

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  15. The whole issue was very confusing until i came across this article. Well written even i understood it. Thanks very much

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  16. NDADZIDZA CHOSE THANKS MWANA WAAMAI

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  17. When legal matters get explained so simply, they become available for the generality. Thanks for this wonderful piece.

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  18. Insightful indeed,vanenzeve vanzwa.
    Thanks Tinashe.

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  19. Thank you Sir, this was very informative and learnt something about how the court decision was reached.

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  20. On point. Its not a popularity contest. Just constitutionalism

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  21. This is a masterpiece Chamisa is popular yes but his rise to power was unconstitutional....simple

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  22. dai ndine mari ndambokukandirai. this is a sobber analysis

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    1. Yeah true its so balanced indeed and well analysed .very informative shuwa.

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  23. commendable, unbiased analysis. i look forward to more of your writings

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    1. Thanks so much for the kind remarks my brother

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  24. Hofisi ndiwe wakadzidza paMarist Nyanga here, wakosha mukoma wangu

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  25. Thanx for the enlightment

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  26. This is so so informative and lucid. Thank you so much.

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  27. Wow. This is quite eye opening and really a great read for some of us who love analysis in a neutral manner. Thanks

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  28. Insightful, clear and sobber

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  29. This is a correct and neutral analysis of the circumstances. Hats off for that.

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  30. A great analysis. I am a first year university student, I hope to write something like this someday.

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  31. This is a clear testimony that we still have some bumby roads to go with our internal party democracy.

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  32. i am still confused. if Khupe was the legitimate successor and she held a congress wich elected her leader of MDC T, she then goes on to contest elections as MDCT. why is the court viewing MDC alliance as the target for that judgement instead of MDC T run by Khupe. shouldnt it follow that by having that congress Khupe was actually following the constitution and what we should be looking at now is of what nature is this animal called MDC alliance. isit a new party, a coalition of independents or what?

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    1. you can ask that again...2 parties here yet judgement keeps referring to MDC..which MDC?

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    2. The Court was asked whether Chamsia's party followed its own constitution, and not Khupe's

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  33. That was f*****g informative. Please excuse my French.

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  34. Well balanced analysis ' the only sober analysis. Not zvinoda gumwandira. I have learnt as a layman. Keep this good work comrade
    Silvanos Mudzvova

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  35. It's unfortunate circumstances for the people of Zimbabwe, Great analysis Bru you are spot on.

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  36. Very balanced and thoroughly analytical. My take from this article is there is a lot of flip-flopping on the part of the MDC---running to the Courts to settle their internal squabbles and vilifying the same when they lose!

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  37. Sir Thank you very much for this well written piece. It is without doubt the best analysis I have come across so far of the recent court judgement. It is a particular weakness we exhibit as a people that we let our emotions occlude our window into the truth. I feel pained when the people who are supposed to be our technocrats just give us emotional rant when what we expect of them is a sober analysis of the situation followed by proposals on how to solve them. Thank you and please keep writing. We are learning a lot from you.

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  38. Dr Hofisi...which MDC are you referring to when you say MDC.
    these 2 parties contested as 2 different parties in the elections,infact Khupe was elected by her party as the president how then does Chamisa become illegal in the MDC T party to which he isnt a member.
    the issue of assets yes wld agree they belong to Khupe's party.
    what effect wil the judgement hv on ED and Mpoko-Mpoko shld hv been the president when Bob resigned????

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    1. The question of which MDC does not arise in this case boss. If you study the judgement well, the first thing to note is what was primarily challenged is the decision to have appointed NC and EM as deputies. Surely that puts NC and TK in the same bracket. What will happen is NC will have to pay back the 1.8 mil and surrender all party property. The issue of ED and Mphoko has different circumstances and anyone who is legally sound will tell you that Zanu Pf was quick to act and heal the damage.

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    2. My understanding is that MDC-A is not a party, but a coalition of opposition parties that include MDC-T.

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    3. I am referring to the party which was before the Court which is Chamisa's party. Mphoko became president after Mugabe resigned by operation of law. Acting Presidents do not need swearing in so there was no violation there.

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  39. Insightful and spot on. Thanks a lot.

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  40. insightful, But I am confused about the ED and Mpoko issue. ED was fired from party he came back and become president of the party ????????????

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    1. ED was fired, but ZANU PF constitution allows the Politiburo to uphold or change decisions in-between congress, hence Mugabe never allowed the Politiburo to sit when he was away. In the ED case, the Politiburo reinstated ED and several others who were fired. With the backing of the central committee's resolutions of recalling Mugabe, Grace et al, the politiburo resolved to readmit ED then appointed him first secretary of the party (all which is above board in ZANU's constitution). That is the reason the army kept on saying its a "military intervention" and the reason why it took long for Mugabe to step aside. they were dealing with the legal requirements both at party and state level. At state level, they invoked the parliamentary processes that sought to impeach Mugabe putting him in a corner to concede. Zanu played an elaborate political and legal game. All these processes were available during Mugabe's time but he micro managed the political system such that no one from Zanu would dare support impeachment proceedings against him. Same with the ZANU constitution, Mugabe just made sure that no one would chair politiburo whilst he was away but their own laws allowed for him to be recalled by the politiburo at any time.

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  41. A well articulated article. Kudzidza hakupere. Thanks so much

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  42. Yaaah, this was very insightful. Nw ndakuwona zveshuwa kuti dzungu haribhadhare.

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  43. Well articulated and very insightful. Thank you Doc.

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  44. Very insightful and sober analysis. Great work!!

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  45. A sober and valid analysis of the judgement. Forward with constitutionalism not populism

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  46. Thank you for this puts a lot into perspective.

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  47. What an analysis... I am delighted with the work... Sober and academic

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  48. Great piece David, I agree with nost of your views. I however believe there is room for substantial legal criticism of the judgement devoid of political thought. For instance, was this a proper case for the exercise of declaratory relief. In my view this ought to have had been an application for review because in fact it reviewed Tsvangirais decision to appoint Nelson Chamisa and Elias Mudzuri as Deputy Presidents. Your article is an excellent read, and I shall learn to follow your blogs

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    1. One can argue that it could have been an application for review - but conversely this was deemed a vindication of constitutional rights so this depends on which legal route you believe best secures your outcome. Thanks so much for the kind remarks!

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  49. So what now since Khupe already left and had her congress who then is legally entitled to run the party. Also since Khupe does not have the 2014 structures is she entitled to claim the assets? Will that not make Khupe bigger than the party? Are decisions and powers not vested in the National council rather than an individual?

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    1. The party is run by the SG or National Chairman and holds the extraordinary congress as ordered by the Court where Chamisa is elected President. That would be the way forward

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  50. I was of the blubberers... I jhave just been sobered up!!

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  51. Excellent. Its unheard of that an opposition party founded on democratic values supports utilitarianism over constitutionalism. The folly of Zanu PF, as I have always argued, is to support principals over principles. When this happens you slowly lose your values as principals are naturally never consistent but principles are. Serious need for introspection in the MDC before the party slowly metamorphoses into another Zanu PF. Once again, excellent piece my brother.

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    1. I agree with you there - and thanks so much for the kind remarks!

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  52. Been confused about this all week. Now it's clear. Thanx Lamps

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  53. Where can I find the complete ruling

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    1. I can send if you provide your email or whatsapp number

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  54. A sober ,insightful analysis!! Great article

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