NATIONAL LOCKDOWN UNCONSTITUTIONAL

Like several countries, Zimbabwe is in a state of lockdown. In response to the Covid 19 pandemic, the Minister of Health promulgated a series of statutory instruments to prevent further infections. Individuals are confined to their homes by law except in such circumstances as grocery shopping and purchase of drugs. It is only the forms of work which are deemed essential services which are to continue until 3 May 2020. The statutory instruments also provide for compulsory testing and allows members of the military to assist the police in enforcement.

These measures are laudable to the extent that they combat a highly infectious global pandemic. However, this noble intention does little to mask patent constitutional invalidity. The 2013 Constitution contains an expansive declaration of rights. These rights are heavily implicated by the national lockdown. The prohibition of gatherings suspends the rights to freedom of association, assembly, expression and the right to demonstrate and petition. Confinement in the home derogates from freedom of movement whilst limiting access to work is obviously against the section 64 right to ‘carry on any profession, trade or occupation.’

These rights are not absolute. The Constitution allows the limitation of most rights in the public interest including for public health reasons. Such limitation would qualify as reasonably justifiable if enacted through a law of general application. The Constitution distinguishes laws passed by Parliament from statutory instruments from the executive branch. The statutory instruments establishing the national lockdown would be sufficient to limit rights were it not for section 134 (b) of the Constitution;

statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights;

It is abundantly clear that the Constitution does not allow a statutory instrument to limit a constitutional right. This is left to Acts of Parliament. In other words, it is only when the people’s elected representatives pass a law, and it is signed by the President, that a right can be limited. It is a coordinate branch responsibility. Limitation of rights upon the stroke of a Minister or the President’s pen is no longer constitutionally permissible.

These checks and balances are meant to preserve popular democratic participation. Parliament is central to any limitation of rights because of its representative role. It ensures that the people remain engaged in the constitutional conversation. The procedure for passage of a bill, which includes public hearings, reduces the distance between the people and their own governance. It ensures a balance between top-down and bottom-up approaches to governance. Thus, the Government of Zimbabwe should have called an emergency session of Parliament to consider bills necessitated by the pandemic. This process would have allowed members of Parliament to bring the plight of their constituents to bare and have this reflected in subsequent legislation. In the United States, this was the process by which Congress incorporated a version of universal basic income for all Americans. The failure to incorporate such concerns has led to stiff resistance and a court order against the lockdown in Malawi. 

This is the reason why the Constitution contemplates a state of public emergency for such circumstances. It defines the extent to which rights can be limited by emergency laws and subjects such declaration to approval by Parliament (if it does not fall away within fourteen days or twenty one if Parliament is not in session). It does not contemplate unilateral action out of the executive branch. However, this is what the government of Zimbabwe opted for in making a declaration of a national disaster. Such declarations empower the executive to issue statutory instruments. The Civil Protection Act, which provides for national disasters, predates the current constitution. Even though Ministers can still promulgate statutory instruments, the Constitution no longer permits such when they limit fundamental freedoms.

This renders the entire scheme for the national lockdown unconstitutional. This should not be blamed on non-alignment of laws with the Constitution. Rather, it should be understood in the context of institutional choices by a Machiavellian executive. It is not an innocent mistake by a well-meaning administration. These are powerful functionaries circumventing constitutional imperatives to increase the scope and scale of executive power. Not only do the statutory instruments infringe fundamental freedoms, they create new powers, such as those allowing the Minister of Home Affairs to close ports of entry and exit as he/she deems fit. Yet there remain no answers to the crucial questions of whether the state will pay for the Covid 19 tests, who will provide for workers who are laid off and social safety for the informal sector. These crucially important provisions should be contained in a comprehensive  parliamentary bill which incorporates the views of all critical stakeholders. Statutory instruments will not suffice. Times of crises present uncertainty, which makes many yearn for decisive action, even if it be authoritarian. This heightens the need to be wary of high level power grabs and constitutional misfeasance, more so when subsidiary legislation is used to justify yet another deployment of the notorious Zimbabwean military onto the civilian population.

MDC, MDC-A or MDC-T? Contested Meanings of Judicial Outcomes

This post explores the aftermath of the Supreme Court decision against the MDC. Whilst the judgment is binding on the MDC, its members have insisted on the MDC Alliance (MDC-A) identity and assert that the judgment is only binding on the MDC-T. This is an instance of political mobilization to contest the meaning of judicial outcomes. It poses interesting questions about the main opposition party’s relationship with the courts. These are dealt with in just five sub-headings:

1.    Who is the MDC-T?

The MDC-T is, according to the Chamisa camp, the party formerly led by Morgan Tsvangirai and currently under the stewardship of Dr. Thokozani Khupe. The court judgement only refers to the MDC, but prominent MDC members argue that since the pleadings referred to the MDC-T, this is the entity bound by the judgement. They also claim that, since Advocate Chamisa and others ran on the MDC-A ticket, they are not bound by the judgement. The concession that the party formerly led by the late Morgan Tsvangirai is not the one led by Advocate Chamisa is highly remarkable. Prior to the 2018 elections, Advocate Chamisa's party sued Dr.Khupe and others for use of the name MDC-T. This matter was supposed to be decided in the High Court, but was withdrawn. Thus, there remained two factions of the MDC-T, something that Dr. Alex Magaisa acknowledges. Therefore, the MDC-T was not singularly a reference to Dr.Khupe’s party. This explains why, in spite of Dr. Khupe's non-participation in the MDC Alliance, the Alliance Agreement specifically includes a party called the MDC-T.

So two MDC-T’s participated in the elections, one as part of an alliance and the other independently. After elections, the MDC Alliance partners reverted to their parties with Advocate Chamisa reverting to his own MDC-T. Two former Alliance partners joined Chamisa’s MDC-T and called themselves the MDC. The MDC itself claims that three parties formed a new party called the MDC Alliance and then proceeded to congress. Needless to say, this is not supported by their public pronouncements at the time. There was no new political party. Tendai Biti’s PDP and Professor Welshman Ncube’s MDC dissolved their structures to join the MDC-T. For this reason, Chamisa’s MDC-T did not dissolve any structures. As the then party spokesperson Jacob Mafume explained, it was like a company merger. It was not akin to the creation of a new company. The MDC Congress Resolution Number 23 readmitting ‘former party cadres’ would become an absurdity in the context of a new political party – there is not readmission into new entities.  

This MDC, which sought to stop Dr.Khupe from using the title MDC-T, is the same party which self-identified as the MDC-T in the MDC Alliance Agreement. It is the bigger faction of the MDC-T and was thus a party to the proceedings even by the MDC members' current assertions. Otherwise, the MDC would never have appealed the judgement and simply announced that it was not a party to the High Court proceedings. The attempted sleight of hand by the MDC has left them claiming that the MDC Alliance party participated in elections even though its constitutive and elective congress was only held thereafter. 

2.    Why the Coronavirus judgment?

Questions have been raised regarding the timing of the judgment. The suggestion is that the COVID19 pandemic and national lockdown were used as a cover by the courts. Further, it is argued that since all matters other than urgent cases were postponed, there was no justification for handing down the judgment.  This is at odds with the fact that courts around the world have continued to hand down decisions. In the week that this judgment was released, the Constitutional Court of Kosovo struck down the restriction of citizens’ freedom of movement during the pandemic, the Constitutional Court of Uganda invalidated legislation that gave the police powers to stop public gatherings and protests, whilst the High Court of Singapore dismissed a challenge to the law which criminalizes homosexual acts between males. This means the Zimbabwean Supreme Court is not an outlier in its continued delivery of judgements.

More specifically, the Practice Direction from the Chief Justice does not deal with delivery of judgements. It covers filing of new cases, time limits for process and postponement of pending matters. Cases in which judgements are reserved are neither new cases nor subject to the same rules of time limits and postponements. They are not the reason behind the practice direction and are not limited by its provisions. To this extent, the conduct of the court was consistent with both its practice direction and global trends.  

3.    Why the Bhasikiti inconsistency?

There is also the view that the case of Dr. Kudakwashe Bhasikiti exposes judicial inconsistency. This is because both cases challenged decisions by their respective parties. Dr. Bhasikiti was ordered to exhaust internal remedies in ZANU PF even though he argued the party organs would be biased against him. On the other hand, Mashavira was told he need not exhaust internal remedies for the same reason proffered to Bhasikiti, that is, institutional bias. The High Court already indicated that the Bhasikiti case is distinguishable from that of Mashavira. Dr. Bhasikiti only challenged the action by his party, and not the propriety of its leadership or the institutional legitimacy of his party. He was only concerned with his own expulsion. In circumstances where the legitimacy of the party or its leadership is not in question, it is reasonable to demand that internal remedies are exhausted.

In the case of Mashavira, the legitimacy of top leadership was the subject of litigation. He was not only challenging party action, but incumbent party leadership. This is not the same as challenging the action of a party whose leadership is accepted as legitimate. Disputed legitimacy casts a dark shadow over the propriety of such internal processes given their capacity to bring the leadership wrangle to bear. Further, the High Court stated that the Mashavira case also involved a declaration of rights, which could not be secured in an appeals tribunal. Thus, when a party member is expelled they are still bound by the Bhasikiti rule to exhaust internal remedies unless the legitimacy of the party or its leadership is itself the subject of the legal challenge. This approximates to the rule in Jessie Majome vs ZBC when Constitutional Court stated that an applicant will be sent back to remedies provided in law unless the constitutionality of that other law is itself challenged.  

4.    What of the Madzimbamuto judgement?

The Madzimbamuto judgment does not necessarily mean the court should have decided in favour of Chamisa. In that judgement, the Southern Rhodesian Court ruled that effective control was sufficient to bestow legality. This was overturned by the Privy Council, which held that a usurping authority cannot pass the muster of legality. The Zimbabwean Supreme Court was guided by both judgements. It agreed that Chamisa was in effective control, but found this insufficient to countenance the constitutional violation. The end could not justify the means. The constitution had to be followed, and the court so directed.  

5.    ZANU PF hidden hand?

Perhaps there is, as suggested, a hidden ZANU PF agenda that has turned Douglas Mwonzora, Morgan Komichi and Dr. Khupe against Advocate Chamisa. I am unable to confirm or deny this hypothesis. However, I have several points of inquiry: why would a character like Morgan Komichi, who sold his candidature for Vice Presidency singularly on his Abrahamic loyalty make a volte face against the leader he said he would never desert. The same man who was arrested and convicted for his party related activities in each of the last two elections has suddenly warmed up to ZANU PF? Similarly, Douglas Mwonzora was repeatedly arrested, with one such incident resulting in the ‘Mugabe is a goblin’ judgement. He was also detained to derail his role in the COPAC constitution-making process and like Dr. Khupe, stood with Morgan Tsvangirai through each split from 2005 through to 2014.

There could be more to this than unseen ZANU PF shenanigans. Consider the effect of undermining elected positions through arbitrary appointments. Even though Mwonzora defeated Chamisa at the 2014 MDC Congress and Dr. Khupe won the Deputy Presidency for the third time on the same occasion, they both witnessed the elevation of Chamisa and Mudzuri to the vice presidency notwithstanding the absence of electoral process. This should be scrutinized in the context of preferential treatment of persons who previously left the party. Professor Welshman Ncube and Tendai Biti returned to the Alliance as principals on equal footing with Morgan Tsvangirai, then became Vice Presidents. Morgan Komichi, for all his consistency, was left to publicly ask for assistance in spiritual healing. Therefore, having witnessed preferential treatment of members who previously left the party, it is possible that key actors in the MDC are now drawn by the allure of similarly leaving the party to secure higher office via future coalition building.

Conclusion

Why does all this matter? Chamisa’s masses will rally behind him after all. The name of the party will not change this reality. Though this may indeed be the Shakespearean rose which by any other name still smells as sweet, these questions remain relevant. As noted by the court, the MDC is a ruling party in waiting. ZANU PF has already perfected the asvotwa ngaarutse approach to party and national politics. Perhaps the failure to reach common ground with Professor Welshman Ncube's party ultimately hindered the MDC-T from securing the national presidency in 2008. These are hard but necessary lessons. Even if Dr.Khupe does not command a huge following, espousing inclusivity would inspire many beyond her own base and bode well for party unity. 

Further, relations with the judiciary have profound implications for good governance. We must consider the realities that would confront any possible MDC government. Judges do not lose office when there is a change in the national presidency. Like ZANU PF in 1980, the MDC would face a bench whose appointment predates their incumbency and whose confrontation with their executive would be lauded as evidence of judicial independence. How would they deal with the same judiciary they have consistently vilified? Would they purge the courts (as Mugabe did)? Would they resort to the same smears and counter narratives? Or would they suddenly become receptive of rulings contrary to their interest? Dr. Magaisa rightly calls out those who enabled Tsvangirai’s constitutional misfeasance. We must not be similarly founding wanting. It is not too late for the MDC to fashion itself as the party that accepts court decisions, even those they find disagreeable, for the sake of the rule of law. This is crucially important because ultimately, the most vital part of the main opposition party’s title is not the suffix ‘T’ or ‘A’ but the preceding ‘D’ for democratic change.

MDC Alliance: Old wine in new wineskins? COALITIONS, CONGRESSES AND CONSTITUTIONS

The Supreme Court ruling on the MDC leadership wrangle sparked a national debate on parties, constitutions and congresses. This post adds to that debate by answering ten (10) questions which assess the significance of the various formations of the MDC. All assertions about the MDC Alliance agreement are in terms of the version I have been availed.

1.    What is a political party?

In a broad sense, a political party is any group of persons representing themselves as such. Zimbabwe has a liberal approach to political party formation and University of Zimbabwe Professor, Eldred Masunungure remarked that it might be easier to form a political party than open a bank account. There is no registry of political parties. Whilst the Constitution protects the right to form and be part of a party, there are no requirements for their recognition. A political party includes any political organization according to the Electoral Act, whilst the Political Parties Finance Act defines it as any association of persons seeking election to a local authority or Parliament.

Many parties notify ZEC of their existence, but this is not a legal requirement. The nomination court is another process through which parties register their existence, and it is only the parties which gain at least 5% of the vote in the general election which qualify for public funding. However, those political parties which do not succeed at or participate in elections still enjoy constitutional protection.

2.    What about Congress, Constitutions and Party Membership?

These depend on the party concerned. However, every political party has some form of constitutive rules. Some have an active membership with elective powers at congresses, conferences or conventions. So called cadre parties are more elite and exclusive, whilst mass parties have active grassroots membership. The main parties in the USA constitute cadre parties together with the Conservative Party in the UK. Most Zimbabwean parties are mass parties with written constitutions. This makes constitutional rules identifiable, durable, supreme and binding. Whilst a written constitution formally constitutes a party, it is not required in the notification to ZEC for electoral participation. 

3.    Why do most parties have written constitutions if they are only optional?

It can be used as evidence that a party is formally constituted. Further, constitutions are important in determining whether a party has ceased to exist and dealing with attendant consequences in respect of assets and liabilities.

Written constitutions can also be evidence of commitment to good governance, limited power and rule-based accountability. Even if certain rules are not followed, their enactment serves as evidence of commitment. For instance, both major parties are guilty of repeatedly ignoring the constitutional imperatives for gender balance in candidate selection. Be that as it may, the enactment of such provisions is touted as proof of gender based bona fides. In this way, written constitutions are an opportunity to hold leaders accountable to binding provisions even if they may only be committed at a superficial level.  

4.    Was the MDC Alliance a political party?

Yes and no. The MDC Alliance was a special kind of party: a party of parties. To the extent that it was an association of persons seeking election, it was a political party. Then MDC Secretary General Douglas Mwonzora acknowledged as much. Many coalitions participated in the 2018 elections from the Joyce Mujuru led People’s Rainbow Coalition (PRC) to Elton Mangoma’s Coalition of Democrats (CODE). These were not stand-alone political parties, but composite structures which assumed the form of political parties in certain circumstances. Internally, the MDC Alliance remained a loose pact of individual parties though externally it was a party for purposes of electoral competition. 

5.    So that means Advocate Chamisa is rightly the President of the MDC Alliance?

There is no president of the MDC Alliance. In terms of the Alliance agreement, there is a presidential candidate for the national elections, who also chairs the Coalition Principals Forum prior to elections. The Alliance was modeled like the Republican and Democratic parties in the USA which have no presidents but a rotating cast of nominees for election to the national presidency. In clause iii, the agreement calls itself “a non-compete pre-election alliance and post election [sic] Coalition Government.” It was to last five years in the event of an MDC Alliance victory, failing which it was subject to review. This review could have resulted in the decision to reconfigure the pre-election pact into a post-election stand-alone political party.

Such review would have done away with the strict independence of the seven constituent parties under clause 2.0 and paved the way for creation of an Alliance president. Alliance partners would have either dissolved or integrated their structures to form a new party under the banner of the MDC Alliance. This is the version of events propagated by Chamisa’s party. It would lend credence to the argument that the MDC Alliance party was never subject to any litigation and therefore cannot be bound by the Supreme Court ruling.

6.    What did MDC officials say about the Alliance?

The MDC’s version of events would be plausible if senior MDC officials had so stated after elections. Instead, they suggested that the Alliance was over and its partners were free to join the MDC or any other party. Rather than form or join a new party, they insisted that partners were to join the already existing MDC, akin to the way PF ZAPU (re)joined ZANU PF. On 11 September 2018, MDC presidential spokesperson Dr. Nkululeko Sibanda made announcements in the company of then party spokesperson, Advocate Jacob Mafume. The video is still available for viewing. He announced that Advocate Chamisa was “integrating the MDC Alliance into the MDC.” Dr. Sibanda was emphatic that the name of the party was not the MDC Alliance, but the MDC;

It is important that we underline the fact that the name of the party is the MDC. Both MDC-T, MDC Alliance and other names that have been used in the past were simply election vehicles and not the legal names of the party. As per our constitution, the party that everybody is integrating into is the MDC.

Thus, the MDC was aware that references to the MDC-T or MDC Alliance were variants adopted for elections rather than internal administrative purposes. Whether led by Professor Welshman Ncube, Morgan Tsvangirai, Advocate Chamisa or Dr. Khupe, the party remained the MDC in its various formations. Thus, a conscious decision was made to abandon the new title of the MDC Alliance whilst encouraging Alliance partners to join the already existing and much larger MDC.

In the same press conference, journalists asked the effect of such choice on the court case challenging the use of MDC intellectual property. Rather than claim that it involved a different party distinct from the new MDC Alliance party, Advocate Mafume simply maintained that the MDC owns patents to all MDC variants including MDC-T. Journalists even asked if reverting to the MDC did not leave parliamentarians vulnerable to recall since they represent the MDC Alliance. This is consistent with then Deputy Treasurer General, Chalton Hwende’s 7 August 2018 tweet confirming that the Alliance was only for the elections, with individual parties now “free to join political parties of their choice.”

Even more importantly, this version is supported by the public statement issued on or around 3 May 2019 by a former Alliance partner, Jacob Ngarivhume of Transform Zimbabwe;

 It is common cause that the alliance did not succeed to dislodge the military-backed Zanu PF government and by operation of law, the alliance was dissolved, with each party reverting to its position prior to August 5, 2017…

Negotiations were opened for the amalgamation of the alliance partners into one political formation. This would entail the alliance partners dissolving their party structures and joining into one party under the name and style of MDC.

The position by senior MDC officials, as corroborated by Alliance partners, seems abundantly clear. The Alliance was no longer extant, with partners free to join parties of their choice or revert to their individual outfits.

7.    So what really happened?

Though highly implausible, it remains possible that leaders of the MDC were at variance with their top lieutenants, official spokespersons and alliance partners. They could have desired a new party called the MDC Alliance but failed to convey this with sufficient clarity. Fortunately, this can be ascertained. The Alliance agreement contained an integration clause making it the complete and final agreement of the parties. In terms of clause 7.3, it can only be varied by written instruction executed by all parties. The decision to transform the pre-election pact into a post-election stand-alone party would need to have been written and executed by all parties. Evidence of such written instruction would suffice to prove the claims made by Chamisa’s party.

What is more likely is that the MDC and its Alliance partners knew that failure to win the election meant the demise of their arrangement. They entertained the idea of amalgamation, but only into the existing MDC and not a new party with seven constituent members. Even though the Alliance was over as pact, the MDC understood its representation in parliament and local authorities as a license to the same dual existence they had with the moniker MDC-T. They were the MDC Alliance in electoral representation but the MDC in internal party business. The adverse ruling from the Supreme Court heightened the need to not only embrace the Alliance identity, but insist that it also sufficed for internal party administration and thus escape constitutional accountability. There is, of course, nothing to stop them from constituting themselves as the MDC Alliance. What is more difficult is to convince the world that the MDC Alliance party elected its leadership at a congress in Gweru, even though it was styled the 5th national MDC Congress. The readmission of members including Professor Welshman Ncube and Tendai Biti at that Congress is at odds with the notion of an event by a newly created party. If the names MDC and MDC Alliance are this interchangeable, then the latter variant would not be sufficient cover from the court's order as it would render the two synonymous. It would also be at odds with the court's finding that the the Congress in Gweru was held by the party that was before the court, that is, the MDC. 

8.    But Khupe held her own Congress!

The MDC Constitution requires an extra-ordinary congress to replace its President within a year of the vacancy occurring. The deadline for such congress was 15 February 2019. Dr. Khupe held the extra-ordinary congress on 22 April 2018 and claimed to be the legitimate MDC leader under the moniker of MDC-T. The Chamisa led MDC did not hold an extra-ordinary congress even when it became due and were so ordered by the High Court. Instead, they held their 5^th elective congress from 24 to 26 May 2019. In their resolutions, they stated that they believed they had discharged the obligation in the High Court order. The Supreme Court disagreed. The High Court order is yet to be fulfilled and Chamisa’s party was ordered to hold an extra-ordinary congress under the legitimate Acting President.

Many have asked why Dr. Khupe’s congress was not under similar scrutiny. This is because her formation was never before the Court. Those who watched the court proceedings will recall the judges repeatedly asking lawyers the significance of Dr. Khupe’s own congress. The court seemed willing to pronounce on the matter, but lacked the factual basis to do so. The lawyers said they did not have instructions on that point. That left the court to deal with the propriety of the MDC’s claims in light of its constitution and the High Court's findings. Holding an extra-ordinary congress was not found to be evidence of relinquishing interests established by the constitution. The alternative relief from the Court, in terms of which the National Chairperson calls for the extra-ordinary congress, accounts for the Court's failure to ascertain whether Dr.Khupe had indeed relinquished her interest in the larger MDC. This leads to the awkward, but not illegal, result of Dr.Khupe being the substantial leader of one formation and interim leader of another. 

9.    Does this automatically make Dr.Khupe the leader of the MDC Alliance?

It does not. As highlighted before, there is no president of the Alliance. The Alliance agreement states that the presidential candidate is chosen by the parties. That candidate was Morgan Tsvangirai and after his death, the alliance partners likely chose Advocate Chamisa in terms of clause 3(b) as the most popular candidate rather than through a process of automatic elevation. There is no clause supporting the assertion that the leader of the larger MDC is an ex officio leader of the MDC Alliance.

10.So Dr.Khupe cannot recall MP’s since she is not the leader of the MDC Alliance?

Not exactly. It does not appear as though she needs to be the MDC Alliance leader to have a right of recall. The Alliance has no real leader. Even though the Alliance agreement does not have a clear clause dealing with parliamentary recall, this is built into clause 4.1.7:

the parties shall not have a right of recall of members of the executive without the consent of the President except when the respective party has recalled them from parliament...

This shows that the Alliance agreement retained the power of recall within the individual parties. In the contemplation of the agreement, the individual party could recall a member of the executive without the consent of the national president if such member had also been recalled from parliament. Since Dr.Khupe is the Acting President of a party to the Alliance agreement, she has the power to recall members of parliament from that party to the agreement. Whilst the National Constitution says it is the party on whose ticket one was elected that can activate recall, in this case the electing party was a party of parties. That party of parties reserved the right of recall to the individual parties, and the individual party in this case would be the MDC under her interim leadership. Further, the courts have said that once the Speaker of Parliament or President of the Senate receives a letter of recall, they have no discretion and are bound to declare such seat vacant. Thus, if Dr.Khupe were to recall members of parliament, they would stand to lose their seats unless they secure preventative court orders prior to such eventuality.

Conclusion

This drawn out saga has exposed the fiction of formal constitutional rules. It is presumed that people join political parties in part because they agree with the party’s ideology and constitutional provisions, which the courts defend for their benefit. However, our parties are personality driven institutions. Constitutions and party congresses are established to enable rather than limit popular power. Like the laity which follow the clergyman no matter his theology, we will support the popular candidate no matter their ideology. The reaction to constitutional breach is not outrage but more fervent support. Needless to say, this is a very dangerous form of politics. It breeds an animated, zealous, almost cultic, following at the expense of democratic checks and balances. This judgement will fire up Advocate Nelson Chamisa’s base. Chamisa’s camp, and their response of subtle legal subterfuge, is uniquely attuned to this demographic. This will be sufficient for him to hold the base and remain party president, whatever that party maybe.

However, to make the leap from party to national to president, Advocate Chamisa will need at least three more demographics: new voters, self-styled independent voters and moderates from other parties. Elevation to party leadership through questionable means might be excusable by party faithful, but continued defense of that unfortunate episode will not project the statesman-like aura needed to broaden his coalition and beat ZANU PF. It will take hard decisions in these uncertain times to transform the Advocate’s candidacy from highly formidable to truly electable.  

PROCESS VS POPULISM: UNPACKING THE SUPREME COURT RULING AGAINST ADVOCATE CHAMISA

On 31 March 2020, the Supreme Court delivered a unanimous ruling in the seemingly interminable battle over stewardship of the Movement for Democratic Change (MDC). In the case of MDC and Others vs Elias Mashavira and Others SC 56/20, the Supreme Court confirmed the ruling of the High Court against Advocate Nelson Chamisa, casting further doubt over the future of the main opposition. This post unpacks the judgement and its likely implications.

1.    Background

On 8 May 2019, Justice Edith Mushore ruled that the appointment of Advocate Chamisa and Engineer Elias Mudzuri to the positions of vice president was contrary to the MDC constitution. The MDC was ordered to hold an extra-ordinary congress under the stewardship of Dr. Thokozani Khupe as Acting President. The MDC then exercised its right of appeal, allowing Advocate Chamisa to be elected party president in the intervening period.

2.    Grounds of Appeal

Numerous grounds of appeal were cited and these have been detailed previously. In a nutshell, the MDC took issue with all findings of the High Court from the ruling that the vice presidents were improperly appointed to the requirement that it holds an extraordinary congress. The MDC insisted that a wrong version of its constitution had been used, incorrect interpretation of its reference to deputy presidents had been rendered and asserted that the application should have been dismissed.

3.    Supreme Court Ruling

The Supreme Court dismissed all of the MDC’s grounds of appeal. I previously contended that substantive criticism of the Mashavira judgment was not forthcoming because it did not exist. This has been affirmed by the Court. Advocate Chamisa’s lawyers even conceded that, after months of impugning the MDC constitution used in the High Court, it was actually the legitimate version! This left it to the Supreme Court to confirm all the findings of the High Court including the ruling that Advocate Chamisa  had been improperly elevated to the positions of vice president and acting president. The order for an extra-ordinary congress with Dr. Khupe as Acting President was confirmed and this is to be done within three months of the court order. Further, there is the seismic order that all appointments and/or reassignments and actions by Advocate Chamisa in his capacity as Vice President, Acting President and substantive President are null, void and of no force or effect.  

4.    But Chamisa was already elected Party President

Yes and no. The Court referenced the Smith government’s declaration of UDI and subsequent court cases dealing with the question of incumbency as a matter of fact (de facto) as opposed to a matter of right/law (de jure). For some judges, even though the Smith government was not legitimate in terms of the law, its effective control of the territory necessitated acceptance of its legitimacy. To an extent, the Court similarly acknowledged Advocate Chamisa’s populist bona fides. In typical Justice Patel perspicacity, he writes that “…I am confronted by what I perceive to be the ineluctable exigencies of realpolitik.” The Court noted that Advocate Chamisa was elected unanimously at congress, unopposed. He not only has effective control of the Party but he has proven himself the most formidable opposition candidate at the polls. Thus, the Court conceded that Advocate Chamisa’s de facto leadership of the Party rendered the appeal academic as it had been overtaken by events.

However, and in a dramatic twist, Advocate Chamisa’s own populist bona fides were turned against him. The Advocate’s formidability as a candidate and viability of his party only served to heighten the Court’s scrutiny since “…it might someday be electorally elevated to become the ruling party in Zimbabwe.” The tenets of rule of law and good governance were found to be even more relevant in such circumstances. Thus, the congress which elected Advocate Chamisa was not in accordance with the High Court order. It was not under the stewardship of the Dr. Khupe as Acting President and is insufficient to discharge the obligations created by the High Court order. Almost like the UDI government in need of proper process before it can be recognised, his populist bona fides require constitutional process to attain de jure incumbency. Populism without process has turned out to be wholly inadequate for the party of excellence.  

5.    But the judgement is about MDC-T and not MDC Alliance

Not exactly. The judgement is germane to the MDC. MDC-T was a moniker developed to distinguish the Tsvangirayi faction from that of Welshman Ncube/Arthur Mutambra. Officially, they both remained MDC. Similarly, the MDC Alliance was a vehicle for elections used by seven political parties led by the MDC, hence the prefix to its title. The MDC Alliance was never a stand-alone party but a group of parties coalescing around the MDC for purposes of elections. At the conclusion of elections, some alliance members joined the MDC whilst others reverted to their own structures.

Therefore, the MDC, and not the MDC Alliance, held its fifth elective Congress in Gweru where Advocate Chamisa was elected president. It was not an inaugural MDC Alliance Congress but the fifth iteration of the MDC’s elective congresses at which they celebrated 20 years of existence. This is the MDC that was before the Court which has to fulfil the judgement order. The Supreme Court made this abundantly clear by that stating without equivocation that Advocate Chamisa “…was unanimously elected as the President of the Party, i.e. the one that is presently before this Court, at its Congress convened in June 2019.” It is the party which elected Advocate Chamisa as president which is required to abide by the court's findings. Given that the alliance is something that collapsed into the party after elections, it is counter-intuitive to suggest it can be extricated and presented as the bona fide entity which held a congress 2019. Neither the facts nor the judgment sustain this claim.

6.    But Khupe held her own congress

This is true. The Court noted that Dr. Khupe may be involved with a different political formation, but found that it does not amount to abandoning her rights and interests terms of the MDC constitution. Her activities are insufficient basis to cleanse the constitutional abrogation by the MDC and its functionaries. In the absence of a judicial determination regarding the circumstances that led to Advocate Chamisa’s elevation, her rights and interests in the party remained extant, her activities elsewhere notwithstanding.

More crucially, Khupe and Chamisa both held congresses, none of which meet the constitutional threshold. Khupe had the law on her side whilst Chamisa had the people. Both are necessary for constitutional conformity, hence the order to hold the constitutionally mandated extra-ordinary congress. 

7.    What does it mean going forward

This judgement reinforces Dr. Khupe’s claim to the reigns of the MDC in real and material terms. She is the Acting President of the MDC at law. Matters to do with party assets, participation in the MDC Alliance as well as disbursements from the state all fall squarely under her stewardship. These are not trivial matters. It could mean an ability to recall members of parliament and local authorities, which comes with the capacity to whip elected representatives into conformity. Further, it enhances her ability to engage with regional and international actors as the only legally recognized leader of the main opposition. The swift moves by Morgan Komichi and Douglas Mwonzora to take assertive action and shape the political narrative suggest that those dismissing the judgement out of hand might be underestimating its utility.

Of course, Advocate Chamisa retains his public appeal. He can opt to use his numbers to trounce Dr. Khupe at the court-ordered extra-ordinary congress. But even as you are reading this, I suspect you share my doubt regarding the plausibility of such new found collegiality. The Advocate has done everything in his power to avoid any eventuality in which he is not at the helm of the Party, even temporarily. His experience running against Douglas Mwonzora in 2014 likely made him suspicious of electoral process which are not under his control. His loyalists' retorts at the courts were as swift as they were sharp, signally continued disdain with any adverse rulings from the courts. Without any substantive critique of the judgment, they have opted for insistence that the judgement is inconsequential since their new found titular home is under the banner of the MDC Alliance.

Insisting on the identity of MDC Alliance involves relinquishing that of the MDC – which may come with loss of real and material power (and possibly assets). It is conceivable that grounds will be found to mount a constitutional challenge. However, the political dividend from such a move would be minimal in circumstances where there is no impending congress or plebiscite at which electoral performance can countenance constitutional misfeasance. This could be remedied by taking the radical route: withdrawing all their elected representatives and using the subsequent by-elections as an overwhelming show of force to upstage the rising Khupe tide. 

The most likely outcome is another split, with the MDC conforming with the Court order, MDC Alliance soldiering on behind Chamisa and ZANU PF weaponizing it by transferring charges of illegitimacy squarely to Chamisa. I previously presented this as a clash of constitutionalism against populism; a mild but alarming version of ZANU PF’s conviction that its electoral majority is a license to freedom from constitutional constraints. Following the court order would restore legal propriety and bring finality to this ceaseless yet needless confrontation which persists at the expense of consolidating the opposition movement.