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.